The Owners - Strata Plan No 55773 v Roden; Spiers v The Owners - Strata Plan No 77953 - [2020] NSWCATAP 95 - NSWCATAP 2019 case summary

NCAT Appeal Panel|2019-12-11|Before: Armstrong J

Introduction

These appeals relate to the keeping of animals in strata schemes.
They raise common questions including: 1. Whether a by-law that prevents the keeping of animals on a lot in a strata scheme is, on the proper construction of the Strata Schemes Management Act 2015 (NSW) (SSMA), impermissible. 2. Whether a by-law that prevents the keeping of animals on a lot in a strata scheme is, by its nature, harsh, unconscionable or oppressive and liable to be declared invalid by reason of the operation of ss 139 and 150 of the SSMA. 3. Whether a by-law that provides a limit on the number of animals that might be kept on a lot in a strata scheme is harsh, unconscionable or oppressive and liable to be declared invalid by reason of the operation of ss 139 and 150 of the SSMA.
The two appeals were heard concurrently on 11 December 2019.
During the course of the hearing of the appeals, an issue arose as to the effect of the transitional provisions found in Sch 3, cl 4 of the SSMA. This clause provides for a review of by-laws by an owners corporation of a strata scheme which came into existence prior to commencement of the SSMA and the effect of the Act on those by-laws. The Appeal Panel made directions to permit the parties to file submissions on this issue, which subsequently occurred.

Summary

For the reasons that follow we have reached the following conclusions: 1. A by-law prohibiting the keeping of animals that was valid under the former Strata Schemes Management Act 1996 (NSW) (1996 Management Act) is not rendered invalid by reason of the passing of the SSMA. 2. A by-law made under former legislation may contravene s 139(1) and be declared invalid under s 150 of the SSMA if it is harsh, unconscionable or oppressive. 3. A contravention may occur in one of three circumstances: 1. By its terms a by-law may be harsh, oppressive or unconscionable. 2. A by-law may be harsh, oppressive or unconscionable because, by its passing, an owners corporation imposes an obligation upon or removes an existing right from a lot owner. 3. Upon consideration of the particular facts and circumstances of a lot owner that might arise from time to time, an existing by-law may operate in a manner which is harsh, unconscionable or oppressive; 1. The fact that a by-law prohibits the keeping of animals does not, of itself, mean that the by-law is harsh, unconscionable or oppressive. 2. In proceedings against an owners corporation under s 150 of the SSMA seeking a declaration that a by-law prohibiting the keeping of animals contravenes s 139(1), there is no general obligation on an owners corporation to prove that it has reviewed that by-law or that such a by-law is objectively justified. 3. In considering whether a by-law contravenes s 139(1), the following matters are relevant: 1. the terms of the by-law, 2. the history of the by-law, 3. the circumstances in which the by-law came to operate on various lot owners (including the circumstances in which any lot owner acquired a legal interest in property in the strata scheme), and 4. the particular circumstances of the applicant that might otherwise demonstrate the by-law is harsh, unconscionable or oppressive. 1. The test under s 139(1) is objective. 2. There is a variable scale of severity, whether the expression "harsh, unconscionable or oppressive" is read collectively or disjunctively and/or whether the section operates in different circumstances. 3. The degree of severity is higher than the standard of "unreasonable".

Roden appeal

In the first appeal, AP 19/44871 (the Roden appeal), the appellant is The Owners-Strata Plan No. 55773. The Owners Corporation appeals against an order made on 18 September 2019 in favour of Mr Roden (the respondent in this appeal and the applicant in the proceedings at first instance). Mr Roden is a lot owner in that strata scheme. The date he purchased his apartment is not known.
The orders made by the Tribunal declared invalid a by-law preventing the keeping of animals because it was harsh, unconscionable and oppressive in breach of s 139(1) of the SSMA. The Tribunal published written reasons for decision on 18 September 2019: Roden v The Owners - Strata Plan No. 55773 [2019] NSWCATCD 61 (Roden). The order was made pursuant to s 150(1) of the SSMA.
The Owners Corporation appealed the decision. The appeal was lodged within time.
The strata scheme is located at Rushcutters Bay. It consists of 280 apartments, of which approximately half are tenanted: Roden at [2].
The by-law in question was in the following terms: By-law 14. Keeping an animal 14.1 You must not keep an animal in your lot or on common property. However, you may keep a guide dog or a hearing dog if you need the dog because you are visually impaired. 14.2 You must not allow your visitors to bring animals into the Residential Scheme unless they are guide dogs or hearing dogs. 14.3 Notwithstanding 14.1, any resident who owed an animal that lived in "The Elan" as at 22 March 2013, may keep that animal provided it was registered with the Concierge staff by 15 April 2013 by the provision of the following details: Type of animal and breed where known Age of animal at date of registration Name of animal Photo of animal Owner's details If the animal is an officially trained assistance dog, evidence of this. The owner of the animal may not, however, replace the registered animal with a different animal for any reason. 14.4 The owner or occupier must do all acts and things necessary to ensure a registered animal does not cause nuisance or hazard to any owner or occupier or unreasonably interfere with the use or enjoyment of lots or the common property. 14.5 Owners of animals who exit or enter the building with the animals are required to use the Level 4 access points and not move through the main entrance lobby with their pets. All animals must be carried or transported by a suitable alternative means while in common property areas, until they reach the car park or an exterior area. 14.6 The owner or occupier will be responsible for cleaning all areas of a lot or common property that are soiled by the animal. 14.7 The owner and/or occupier remain liable for any damage to a lot or common property arising out of the keeping of the animal and shall indemnify and shall keep indemnified the Owners' Corporation against any costs or losses arising out of or in connection with the keeping of the animal including any damage to an person, lot or common property and any costs of high pressure water cleaning. 14.8 Subject to clause 14.11, if an owner or occupier does not comply with any obligation under this by-law, the Owners' Corporation may (at its absolute discretion) revoke any obligation under this by-law or otherwise and give notice of such revocation to the owner occupier. 14.9 If any approval to keep an animal under this by-law or otherwise is revoked by the Owners' Corporation, then the owner or occupier shall remove the animal within 7 days from the date of a written notice is given to the owner or occupier by the Owners' Corporation. 14.10 Any approval given by the Owners' Corporation under clause 14.1 may contain any reasonable conditions approved by the Owners' Corporation at the time the consent is given. 14.11 Any consent under this by-law may be modified, amended revoked or rescinded by a meeting of the Owners' Corporation (or Executive Committee).
The by-law had been passed at an extraordinary general meeting of the Owners Corporation on 6 June 2013, prior to the commencement of the SSMA. It was passed by a majority of 81.85%: Roden at [40].
At the time the by-law was passed, the 1996 Management Act was in force.
The 1996 Management Act provided that a strata scheme may adopt the by-law in respect of keeping animals provided by by-law 17, Option C in Sch 2 to the Strata Schemes Management Regulation 2010 (NSW) (2010 Management Regulation), in the following terms: Option C Keeping of Animals Subject to s 49(4) of the [1996 Management Act], an owner or occupier of a residential lot must not keep any animal on that lot or the common property.
The earlier Strata Schemes Regulations of 1997 and 2005 had a similar option.
There is no issue concerning any irregularity in the passing of the by-law or the conduct of the general meeting.
The by-law had been passed because there had previously been in place a by-law prohibiting the keeping of animals. It would seem that this by-law had not been complied with by various lot owners who had, over a period of time, kept animals on their lots and/or permitted them on common property without the approval of the Owners Corporation. The by-law passed in June 2013 had the effect of permitting these existing animals to remain in the strata scheme, but to prevent their replacement or the bringing onto the strata scheme of new animals: Roden at [40].
In 2017, Mr Roden sought to amend the by-law to provide that the Owners Corporation not unreasonably withhold the approval for the keeping of an animal. This motion was defeated, 64% of the lot owners voting against the motion: Roden at [41].
Thereafter, Mr Roden commenced proceedings to challenge by-law 14 and the Owners Corporation voted to defend the application, this being necessary for the purpose of appointing lawyers. Of those voting, 55.6% were in favour of defending the application and resisting the challenge to the by-law: Roden at [43].
As stated above, Mr Roden's application was determined in his favour.
The Owners Corporation's grounds of appeal are as follows: 1. The Tribunal erred in deciding that any by-law that prevents keeping of an animal is necessarily harsh and unconscionable and oppressive within the meaning of s 150 of the SSMA. 2. The Tribunal erred in elevating the content of the Minister's second reading speech above the text in s 150 of the SSMA, contrary to s 34(1) of the Interpretation Act 1987 (NSW) and the principles enunciated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 (Alcan). 3. The Tribunal erred in finding that the right to keep an animal was a "basic habitation right" without any evidence on which to base that finding and in circumstances where that could not properly have been a matter of judicial notice. 4. The Tribunal erred in accepting as correct the opinion expressed in Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 (Yardy) that "the introduction of s 139(1) in the SSMA was directed to a by-law which allowed for a blanket ban on animals". 5. The Tribunal erred in concluding that the decision in Yardy was not able to be distinguished on the facts from the claim by Mr Roden.
These matters were all said to constitute errors of law. Leave to appeal was not sought on other grounds.

Spiers appeal

In the second appeal, AP19/45615 (the Spiers appeal), the appellant is Ms Spiers. She is a lot owner in strata plan SP 77938. The respondent is The Owners - Strata Plan No 77953.
By-law 9 in that strata scheme provides: By-law 9 - Keeping of animals 1. An owner or occupier of a lot must not, without the prior written consent of the owners' corporation, keep any animal on the lot or the common property. That approval is to be issued for the specific animal the subject of the pet application. 2. Photograph must be included with the pet application. 3. One small animal is permitted per lot. 4. The owners' corporation may not unreasonably withhold its approval of the keeping of one small animal on a lot: owner or occupier are not permitted to keep animal on common property. a. For dogs, small is defined as an adult being less than 30kg in weight and 40 cm in height at the shoulders.
The by-law was passed by extraordinary resolution at a meeting of the Owners Corporation on 17 December 2018.
Prior to that time, by-law 13 operated in respect of keeping animals. This by-law, passed by resolution of the Owners Corporation on 30 April 2015, provided: By-law 13 13.1 An owner or occupier of a lot must not, without the prior written consent of the owners' corporation, keep any animal on the lot or the common property. That approval is to be issued for the specific animal the subject of the application. 13.2 The owners' corporation may not unreasonably withhold its approval of the keeping of One Small animal on a lot or the common property. A. For dogs, small is defined as an adult being less than 13kg in weight and 40cm in height at the shoulders.
By-law 13 was passed under the 1996 Management Act, the SSMA not commencing until 30 November 2016.
Ms Spiers has two dogs, Daisy and Fergus. While she was permitted to keep her first dog, Daisy, she was not permitted to keep the second dog, Fergus.
Both Ms Spiers and the Owners Corporation applied to the Tribunal for various orders. In the case of Ms Spiers, she sought an order to be permitted to keep her second dog, Fergus. This was application SC19/27005. This application was filed in response to the Owners Corporation's application SC19/15745. The Owner Corporation sought an order that Fergus be removed from the strata scheme.
On 11 September 2019, the Tribunal determined the applications and made an order for the removal of Fergus. The Tribunal dismissed Ms Spiers' application to keep Fergus and ordered his removal. The Tribunal published written reasons for its decision: The Owners - Strata Plan No. 77938 v Spiers, 11 September 2019 (unreported) (Spiers).
The Tribunal found by-law 9 and its predecessor by-law 13 "are not on their face harsh, oppressive or unconscionable, there being a legitimate need to limit the number of pets which may reside in a strata scheme with 174 lots at any given time, which is to be balanced against a particular lot owner's need to own more than one pet": Spiers at [44].
In reaching this decision, the Tribunal found at [36]-[38] of its reasons that: 1. Ms Spiers had purchased her lot on 28 February 2018. 2. The contract for sale attached the registered by-laws of the scheme, including by-law 13. 3. At the time Ms Spiers purchased her lot she "could have been under no doubt that the strata scheme only allowed for one small pet". 4. Between exchanging contracts in February 2018 and moving into her lot in April 2018 Ms Spiers purchased a second dog without seeking prior approval of the Owners Corporation, the application to keep her 2 dogs being first made on 26 April 2018, 3 weeks after settlement.
Ms Spiers has appealed the decision of the Tribunal by Notice of Appeal filed 3 October 2019. The appeal was filed within time.
Subsequently, an amended Notice of Appeal was filed. Neither of the notices sought leave to appeal.
The grounds of appeal in the amended Notice of Appeal are: 1. The Tribunal erred in finding by-law 9 and by-law 13 were not harsh, oppressive or unconscionable pursuant to s 139 of the SSMA. 2. The Tribunal erred in ordering that the second dog, Fergus, be removed from the premises.
Ms Spiers does not contend there was any irregularity in the passing of resolutions in respect of by-laws 9 or 13 or the conduct of the relevant meetings of the Owners Corporation.

Consideration

These appeals raise questions of law concerning the proper construction of the SSMA. Leave to appeal is not required and leave is not sought: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In these appeals none of the parties finally contended a by-law which prohibited the keeping of animals was itself impermissible under the SSMA. However, various parties contended that a by-law prohibiting the keeping of animals is by its nature and would, absent evidence establishing its necessity, be harsh, oppressive or unconscionable.
In addition, each of Mr Roden and Ms Spiers contended that, in their particular circumstances, the respective by-law was harsh, oppressive or unconscionable.

The statutory framework

It is appropriate to first set out the statutory framework applicable to strata schemes and their management.
In White v Betalli [2007] NSWCA 243; (2007) 71 NSWLR 381 at 418-419, Campbell JA said of strata legislation: Such legislation creates a statutory framework within which a type of local community can be created and administered. It is a type of community where co-ownership, and physical proximity of the spaces that the owners are entitled to occupy, create the opportunity for both cooperation and conflict. It is a type of community that was new in 1961, though it had some analogies with the communities that had previously existed through the creation of home unit companies under the Companies Act, or allowing for individual occupation of apartments in a building through a tenancy in common scheme.
By-laws are part of the constitution of a strata scheme that govern the operation and management of that scheme. "A by-law is not an agreement, but a law binding on all persons to whom it applies": per Young JA in Casuarina Rec Club Pty Limited v The Owners - Strata Plan 77971 [2011] NSWCA 159 at [46] (Casuarina), quoting with approval the words of Lindley LJ in London Association of Shipowners and Brokers v London and India Docks Joint Committee [1892] 3 Ch 242 at 252.
In White v Betalli, Campbell JA said at [205]: There is nothing in the notion of a by-law that, of itself, imposes any kind of limitation on the kind of regulation that might be adopted, beyond that it is for the regulation of the particular community to which it applies. Any limitation of the type of restriction or regulation that can be a by-law must arise from the statute that enables the by-laws to be created, or from the general framework of statute law, common law and equity within which that local community is created and administered.
This statement, which was made in the context of the 1996 Management Act, was approved by Young JA (with whom Macfarlan JA and Handley AJA agreed) in Casuarina at [30] (also in relation to the 1996 Management Act).
It has equal application to the SSMA.
Part 7 (By-laws for strata schemes) of the SSMA regulates the establishment and effect of by-laws, the conferring of rights and privileges over common property and the enforcement of by-laws.
For present purposes, the following matters are relevant to a resolution of these appeals: 1. Under the SSMA and the 1996 Management Act, the original by-laws for a particular strata scheme are those which were "adopted or lodged with the strata plan" when registered: s 134(1) and (2), SSMA. 2. For strata schemes in existence before the commencement of the 1996 Management Act, the by-laws were as set out in the regulations then applicable: s 134(3), SSMA. 3. In all cases, the by-laws as applied on registration of the strata scheme can be amended as provided in the SSMA or the previous applicable legislation: see s 134, SSMA. 4. Section 138 of the SSMA provides that the regulations may prescribe model by-laws which may be adopted as the by-laws for a strata scheme. As with previous legislation, the SSMA does not mandate the adoption of such model by-laws. However, unlike the 1996 Management Act and regulations, the model by-laws prescribed under the SSMA do not include a by-law prohibiting the keeping of animals: see Strata Schemes Management Regulation 2016 (NSW) (2016 Management Regulation), Sch 3 (Model by-laws for residential strata schemes), by-law 5 (Keeping of animals), Option A and Option B. 5. By-laws can be made in relation to "control, use or enjoyment of the lots or the common property and lots of a strata scheme". However, a by-law has no force and effect to the extent it is inconsistent with the SSMA or any other Act or law: s 136, SSMA. 6. The power under s 136(1) of the SSMA to make by-laws in respect of "control, use or enjoyment of lots or the common property and lots of a strata scheme" includes a power to prohibit or restrict activities on lot property. In this regard, when considering s 58(2) of the now repealed Strata Titles Act 1973 (NSW) (Strata Titles Act), which is in identical terms to s 136(1) of the SSMA, the Court of Appeal of the Supreme Court of New South Wales (NSW Court of Appeal) in Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd and Another (1991) 5 BPR 11,432 (Sydney Diagnostic Services) at 11,434, concluded that: Parliament must have intended bodies corporate to have power to pass by-laws regulating 'the use' of each lot in a strata plan and … [that this power] extended to regulating what trades, avocations and activities could and could not be conducted on each lot. Other cases recognising by-laws may prohibit particular uses of lot property include Casuarina at [43], Bapson Pty Ltd v Puyeti Pty Ltd (unreported) NSWSC 24 May 1990, BC900245 at [8] and Salerno v Proprietors of Strata Plan No 42724 (1997) 8 BPR 15,457 at 15,458-15,459. 1. The SSMA makes impermissible by-laws which prohibit or restrict: 1. the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot: s 139(2); 2. persons under 18 years of age occupying a lot (except a by-law in a retirement village or housing exclusively for aged persons): s 139(4); and 3. the keeping of an assistance animal as referred to in the Disability Discrimination Act 1992 (Cth): s 139(5). However, the limitation in s 139(2) does not operate to invalidate a by-law restricting the use of lots. In White v Betalli & 1 Or [2006] NSWSC 537, when considering s 49(1) of the 1996 Management Act (the equivalent of s 139(2) of the SSMA) White J (as he then was) said at [54]: Subsection 49(1) has been construed narrowly. In one sense, a by-law which restricts the user of the lot, restricts the right of the lot owner to deal with the lot. Most by-laws, including the by-laws in schedule 1 to the Strata Schemes Management Act, include restrictions on the use of a lot. For example, by-law 16 in schedule 1 provides that an occupier of a lot must not keep any animal on the lot without the approval in writing of the owners corporation. This by-law restricts the right of a lot owner to grant a lease permitting the lessee to keep animals on the lot. It could not be said that it is on that account invalid. The cases show that a mere restriction on use of a lot which might limit the number of potential transferees or lessees of a lot does not amount to a restriction on dealing so as to contravene subs 49(1) (Bapson Pty Ltd v Puyeti Pty Ltd (1990) NSW Title Cases 60,054; Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd; Salerno v Proprietors of Strata Plan 42724 (1997) 8 BPR 15,457 at 15,458-15,459; Regis Towers Real Estate Pty Ltd v Kin Fung (2001) NSW Conv R 55-960 at [22], and compare Regis Towers Real Estate Pty Ltd v CSS Holdings Pty Ltd [2001] NSWSC 139 at [21].) It is not necessary to consider further the question of whether or when a by-law which restricts the use of a lot may be a restriction on dealing. Whatever may be the limits of subs 49(1), they do not affect the validity, as distinct from the possible operation, of by-law 20. 1. There is no provision in the SSMA that expressly makes impermissible a by-law which prohibits the keeping of animals on lot or common property. There is no other Act or law to which we have been referred that would render such a by-law of "no force and effect" because of any inconsistency of a type referred to in s 136(2) of the SSMA. 2. The SSMA provides that by-laws in force for a strata scheme coming into existence prior to commencement of the SSMA are the by-laws applicable to that strata scheme following commencement of the SSMA: s 134(2) and (3), SSMA. Such by-laws include by-laws of the type found in Option C of the 2010 Management Regulation, which prohibits the keeping of animals on a lot or common property, the terms of which we have set out above. 3. In Sch 3 (Savings, transitional and other provisions) to the SSMA, cl 4(2) provides: Despite any other provision of this Act, a by-law in force by this Act is taken to be a valid by-law if it was a valid by-law immediately before the commencement of this clause.
In our view, it is clear from the above that the SSMA did not make impermissible or invalidate existing by-laws that prohibited the keeping of animals. Yardy and other first instance Tribunal decisions do not appear to take a different view: see e.g. Yardy at [56]. To the extent they do, in our view they are wrongly decided.
In this regard we note there is a difference in the legislation regulating by-laws in Queensland. Section 131(1) of the Body Corporate and Community Management Act 1997 (Qld) (Queensland Management Act) provides: The by-laws for a community titles scheme may only provide for the following: … (b) regulation of, including conditions applying to, the use and enjoyment of- (i) lots included in the scheme …
In Mineralogy Pty Ltd v The Body Corporate for "The Lakes Coolum" [2002] QCA 550 the Court of Appeal of the Supreme Court of Queensland determined that the expression "regulation" did not generally permit prohibition although a prohibition on carrying out an activity subject to reasonable consent may be within power: per McPherson JA at [8] and following. As stated above, the language in s 136(1) is in different terms and permits prohibition.

The decisions in Yardy, Roden and Cooper

Each of Mr Roden and Ms Spiers contend that the prohibitions in their respective by-laws are harsh, unconscionable or oppressive and the by-laws should be declared invalid.
They rely in different respects on the reasons in Yardy and Roden. In addition, the parties have also made submissions in relation to the decision of Owners - Strata Plan No 58068 v Cooper [2019] NSWCATCD 62 (Cooper). In Cooper the Tribunal determined a by-law preventing the keeping of animals was harsh, unconscionable and oppressive.
It is convenient to consider the parties' submissions on this aspect by first setting out the reasons why the Tribunal in each of Yardy, Roden and Cooper determined the by-law in question was harsh, unconscionable or oppressive.
In Yardy, the Tribunal said: 1. "[T]he evidence establishes that a right to keep an animal as a pet within strata units, under suitable conditions, subject to regulation and control by the owners Corporation, which has due regard to the rights of all unit owners, is part of contemporary community standards applicable to the assessment of an application by a lot owner to keep an animal as a pet in their lot. It may also be, as the applicant submits, a part of a lot owner's basic right of habitation": at [33]. 2. "These standards ought also be applied to the assessment of the validity of by-laws regulating the keeping of animals as pets in strata units": at [34]. 3. The heading to s 139(1), "By-law cannot be unjust", "invokes an intention, on the part of the legislature, that courts apply contemporary community standards about what is just" and "when the totality of the reforms under the [SSMA] and the [2016 Management Regulation]… is considered, they disclose a recognition of contemporary community standards concerning the benefits to humans of appropriate and thoughtful pet ownership": at [61]-[63]. 4. Because, on its face, the by-law in question "precludes the keeping of a goldfish or an axolotl, particularly when there is no possible discretion, or capacity, to consider the particular needs and desires of individual lot owners", a by-law prohibiting the keeping of animals does not "reflect the notion of justice": at [64]. 5. Section 180(7) of the Queensland Management Act, which provides that "a by-law must not be oppressive or unreasonable, having regard to the interest of all owners and occupiers of lots included in the scheme", which is also found in s 149(2) of the SSMA, is an expression that "represents part of the contemporary community standards to apply when determining whether an animal may be kept as a pet in a strata unit": at [65]. 6. "The elevation in New South Wales and Queensland of the definition of the standards for validity of by-laws under strata schemes, although in different terms, both reflect the change in community attitudes to the keeping of animals as pets by occupiers of strata units": at [69]. 7. The test of whether a by-law is harsh, unconscionable or oppressive suggests a standard higher than that in Queensland which is "oppressive or unreasonable". In this regard the use of definitions from the Macquarie dictionary is appropriate to determine the meaning of the expression harsh, unconscionable or oppressive: at [70]. 8. "Harsh" means "ungentle and unpleasant in action or effect": at [72]. 9. "Unconscionable" means "unreasonably excessive": at [73]. 10. These expressions require something more than "unreasonable", that is, something more than "not based on or in accordance with reason or sound judgement": at [74]. 11. An absolute prohibition, which does not permit a consideration of "special circumstances of particular lot owners" is "based on the interests of only one side of the issues associated with the keeping of animals as pets" and is consequently "ungentle and unpleasant": at [76]. 12. An absolute prohibition is unconscionable as it "unreasonably and unnecessarily precludes the exercise of a right of habitation which the Tribunal considers is part of contemporary community standards associated with the rights of owners and occupiers of lots in strata schemes" and "provides no opportunity for consideration to be given to the rights and needs of individual lot owners". It is unreasonably excessive because it operates "only in the interests of those who are opposed to the keeping of animals as pets": at [77]. 13. Finally, it is oppressive because it does not "involve or permit a balanced consideration of the interests and needs of all lot owners or occupiers and operates only in the interests of lot owners who are opposed to pet ownership": at [78].
In Roden, the Tribunal accepted at [69] that under the 1996 Management Act and regulations it was permissible to ban the keeping of animals on a lot or common property. However, the Tribunal followed the decision in Yardy: Roden at [91].
In doing so the Tribunal: 1. appears to have accepted that "the introduction of section 139(1) in the [SSMA] was directed to a by-law which allowed for a blanket ban on animals": Roden at [84]-[86]; 2. said that a by-law which prevents keeping of any animal as a pet is: 1. contrary to the owners' basic habitation right and the use and enjoyment of their respective lots": Roden at [95]; 2. oppressive "because it does not involve or reflect a balanced consideration of all lot owners and occupiers and acts only in the interests of lot owners who are opposed to pet ownership": Roden at [96]; and 3. is harsh, unconscionable and oppressive because it provides no mechanism under which a lot owner could under certain conditions keep an animal as a pet: Roden at [96].
In Cooper, the Tribunal spent considerable time "critiquing" the decisions in Yardy and Roden, the manner in which the Tribunal in each of those other decisions dealt with considerations such as "a basic right of habitation" and the material relied upon in those decisions such as the Second Reading Speech for the Strata Schemes Management Bill 2015. The Tribunal then "rejected" the approach taken in the earlier decisions, at least in so far as those earlier decisions determined that a no pets by-law "per se no longer can stand": Cooper at [101].
Then, at [102] and following, the Tribunal in Cooper said: 1. "Clearly the legislature intended some encouragement of movement towards a regime where the keeping of pets was a decision on the merits and in the context of a particular strata scheme, with the backup of amenity by-laws, but without outlawing per se the solution of "no pets": at [102]. 2. Any new strata scheme would need to make a conscious choice for a "no pets" by-law: at [103]. 3. Existing strata schemes would also "arguably" need to make a "conscious choice" to keep a historic "no pets" by-law: at [104]. 4. "[T]he best expression of legislative intention on pets in the SSMA is that it gives context for assessing the content of the terms in ss 139(1), 148 (where applicable) [which relates to the Tribunal's power to revoke an amendment of a by-law or revive a repealed by-law] and 150": at [106]. 5. The expression "unconscionable" has always been objective and contextually related, being an assessment of all connected circumstances by reference to the values and norms recognised by the text, structure and context of the legislation: at [107]. 6. There is no express prohibition in the SSMA for a "no pets" by-law and there is a "continuing possibility of customising a by-law" so as to provide for the keeping of particular types of pets: at [109].
Significantly, the Tribunal concluded at [110]: The foregoing summary of legislative intent means, in my opinion, that a scheme which wishes to have a blanket "no pets" by-law needs objectively to justify that choice in the context and circumstances of the scheme where, and once, that choice is challenged by a particular owner or owners in respect of particular types of pet and where evidence is led that gives a proper basis for that challenge: cp, in a property rights context, Rielly v Owners SP 18687 [2007] NSWCTTT 58; Owners SP 69140 v Drewe [2017] NSWSC 845 at [30]; Gurram v Owners SP 36589 [2018] NSWCATCD 39 at [32]; John Maait Properties PL v Owners SP 50936 [2019] NSWCATAP 26 at [69]-[70].
Lastly, the Tribunal said at [114]: A blanket "no pets" policy may be objectively justified, as another example, if owners when buying in have clear notice, confirmed by express written acknowledgement, of the no pets by-law, more controversially coupled with a written undertaking not to challenge such a by-law other than by proposing successfully the required resolution in a general meeting.
Consequently, at [115] the Tribunal determined the Coopers had: … demonstrated a proper basis for a case that the nature of Angus, in terms of personality and behaviour of the type of pet that he is, makes it unpleasant or ungentle in action or effect ("harsh"), unjust or unreasonably excessive or not in accordance with what was just and reasonable ("unconscionable"), and unjustly harsh or burdensome in exercise of power ("oppressive"), simply to ban or seek to expel his type of pet (and types of pet with demonstrated similar characteristics) under a blanket prohibition, rather than rely upon the amenity and conduct by-laws to regulate custody and management under the stewardship of owners of types of pets such as him.
The Tribunal then said at [116]: The evidential onus then falls on the owners corporation to put forward evidence able to be objectively assessed in the context and circumstances of the particular strata scheme and that, when taken with the owners' evidence, means that the owners have not satisfied the burden of proving that the blanket prohibition by-law is harsh, unconscionable or oppressive under s 139(1).
The Tribunal said that the Owners Corporation "[had] not led sufficient evidence that, when taken with the owners' evidence, removes the proper basis for the owner's challenge to the "no pets" by-law in the context and circumstances of this scheme". Consequently, the Tribunal was satisfied that "the blanket prohibition by-law is harsh, unconscionable or oppressive under s 139(1) of the SSMA": at [118].
In our view, there are errors in the reasoning in each of the above decisions in relation to the operation of ss 139(1) and 150 of the SSMA in the context of a by-law preventing the keeping of animals.

Proper construction of s 139(1) and approach to determining an application under s 150 of the SSMA

In Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 the High Court said at [39]: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic material cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
In doing so, meaning must be given to the whole of the text of the legislation in a consistent manner: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71].
Section 136(2) of the SSMA provides: A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.
As noted above, s 139 (Restrictions on by-laws) of the SSMA specifically prevents making particular by-laws concerning dealings relating to a lot, children and the keeping of assistance animals. Each of these provisions prevents the impermissible by-law from operating or provides that it has no force or effect to the extent it operates in the prescribed circumstances.
In addition, s 139(1) provides: (1) By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive. Note. Any such by-law may be invalidated by the Tribunal (see section 150).
The statutory prohibition on a by-law being harsh, unconscionable or oppressive is not found in the 1996 Management Act. This provision was introduced in the SSMA. It is, in part, the adoption of equitable principles relating to the oppression of and/or fraud on minorities found in cases such as Young v Owners - Strata Plan No 3529 [2001] NSWSC 1135; (2001) 54 NSWLR 60 at [45].
Section 150 provides: 150 Order invalidating by-law (1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive. (2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court). (3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.
As was the position under the 1996 Management Act (see ss 159 and 209), s 150 empowers the Tribunal to declare a by-law invalid, in which event such declaration might be registered on the title by the Registrar-General pursuant to s 246 of the SSMA. In this way, changes to the by-laws in consequence of Tribunal orders or declarations are recorded on the title of the registered strata scheme and successors in title and those concerned about the rights and obligations of lot owners are informed of alterations to the constitution of an owners corporation.
Section 139(1) operates in respect of all by-laws which might be made. It is not a section the introduction of which was for the purpose of regulating by-laws in connection with the keeping of animals in strata schemes. Its meaning and operation must be considered in the broader context of the SSMA.
Section 139(1) is found in a section which prescribes restrictions on by-laws. It is contained in Part 7 headed "By-laws for strata schemes".
The expression harsh, oppressive or unconscionable is to be considered in the context of its effect upon lot owners (or lessors in a leasehold strata scheme).
A by-law might be harsh, oppressive or unconscionable in one of three ways.
First, by its terms a by-law might be harsh, oppressive or unconscionable.
An example might be where, in the absence of a special use by-law conferring rights or privileges over common property (as permitted by Part 7 Division 3 of the SSMA), individual lot owners are required to repair and maintain particular common property being the structural elements of their building, an obligation which otherwise falls upon the owners corporation because of the duty imposed by s 106 of the SSMA.
Secondly, a by-law might be harsh, oppressive or unconscionable because, by its passing, an owners corporation imposes a new obligation upon or removes an existing right from a lot owner.
Thirdly, upon consideration of the particular facts and circumstances of a lot owner that might arise from time to time, an existing by-law may operate in a manner which is harsh, oppressive or unconscionable.
As stated above: 1. Part 7 includes s 136 which permits a by-law prohibiting the use or enjoyment of lots or common property; 2. unlike restrictions found in subss 139(2), (4) and (5), there is no express prohibition in this Part or elsewhere in the SSMA that makes impermissible a by-law preventing the keeping of animals on a lot in a strata scheme or on common property; and 3. the SSMA does not otherwise expressly state that a by-law prohibiting the keeping of animals is, by its nature, harsh, unconscionable or oppressive.
In Yardy, the Tribunal referred to various extrinsic or extraneous matters said to support its conclusion that a by-law preventing the keeping of animals was harsh, unconscionable or oppressive within the meaning of s 139(1). They were: 1. That there is a basic habitation right which permits the keeping of animals; 2. The fact of prohibition of the keeping of animals and the absence of a power in the owners corporation to consider "the rights and needs of individual lot owners"; 3. The changes to the model by-laws, including the removal of the former Option C (prohibiting the keeping of animals); 4. The heading to s 139(1) invokes a legislative intention that contemporary community standards concerning the benefits of pet ownership be applied; and 5. The Second Reading Speech in Parliament for the introduction of the Strata Schemes Management Bill 2015.
It was said that the harsh, unconscionable or oppressive nature of a "no animals" by-laws is demonstrated by the fact that the keeping of a goldfish or axolotl is prohibited, with no possibility of a discretion being exercised by the owners corporation to permit the keeping of such an animal. On this point like submissions were made in the appeals before us including in relation to live oysters brought to a lot as food.
It seems to us that there are a number of flaws in the analysis in Yardy.
First, there is no reason to import into the SSMA the concept of a "basic right of habitation" in the form of a right to keep an animal which is incapable of being prohibited by a by-law.
While it can be accepted that people may choose to keep animals on freehold property which they own (subject to any other laws regulating such activities), which might be described as a "right of habitation", it is equally open to a person owning the freehold estate in land to refuse all animals being brought onto their land (again leaving aside any other laws that might apply). Likewise, landlords may or may not be happy for their tenants to bring animals onto leased property. This fact simply illustrates the point that different people wish to use and occupy or permit the use and occupancy of their land in different ways. This available choice is an incident of owning the freehold estate.
It is for this reason, in a community living situation, that s 136(1) of the SSMA expressly authorises the making of by-laws "in relation to the … control, use or enjoyment of the lots or the common property and lots of a strata scheme".
Limitations on permitted uses of lots are, in part, determined by the by-laws when they are registered. The entity registering a strata scheme must register the by-laws with the strata plan. In this regard s 10(1)(b) of the Strata Schemes Development Act 2015 (NSW) (2015 Development Act) provides: A plan intended to be registered as a strata plan must: … (b) specify or be accompanied by proposed by-laws as follows: (i) if model by-laws are proposed to be adopted for the strata scheme - specify the model by-laws to be adopted and, if the model by-laws include any alternative version of any by-law, specify the versions to be adopted, (ii) if by-laws other than model by-laws are proposed to be adopted for the strata scheme - be accompanied by a copy of the other by-laws in the approved form and signed by the person required to sign the plan under section 22(1) …
Section 8(4B) of the now repealed Strata Schemes (Freehold Development) Act 1973 (NSW), the predecessor of the 2015 Development Act, contained like provisions.
Generally, by-laws can be amended by special resolution, namely a 75% vote by lot owners in favour of any change: ss 5(1) and 141(1) of the SSMA.
Unlike s 43 of the 1996 Management Act, which prescribed particular subject matter for by-laws without limiting what else may be regulated, s 136(1) of the SSMA reverted to the language of s 58(2) of the earlier Strata Titles Act.
These sections, when read together, confirm that the Legislature is: 1. permitting a strata scheme to be registered which has by-laws limiting the use and enjoyment of lots and common property thereby preventing individual lot owners from exercising all rights of use and enjoyment that might attach to other types of ownership; and 2. allowing, by a vote of 75%, the owners corporation in general meeting to impose or remove a restriction on the use and enjoyment of lot and common property.
Those buying into a strata scheme will be on notice of their rights and limitations in the use and enjoyment of their lot: Sydney Diagnostic Services at 11,434. However they may, with the requisite majority, add or remove a restriction.
In this way, whatever might be described as a "right of habitation" that may be permissible as an incident of owning other freehold property can be limited or prohibited by a by-law in a strata scheme.
It follows that there is no reason to conclude that a by-law is "harsh, unconscionable or oppressive" simply because of a restriction or prohibition as to use or enjoyment which might be permissible under other forms of land ownership.
Secondly, the fact there were changes to the model by-laws by the omission of what was formerly option C under the 1996 Management Act provides no basis for concluding a by-law preventing the keeping of animals is necessarily harsh, unconscionable or oppressive.
Section 138 of the SSMA provides that the "regulations may prescribe model by-laws that may be adopted as the by-laws for the strata scheme". The fact the Legislature has chosen not to make a model by-law on particular terms or about particular subject matter does not mean such a by-law cannot lawfully be made.
There is no automatic adoption of by-laws, the person registering the strata scheme needing to either specify particular by-laws or adopt model by-laws which are to apply. Unless prohibited, specific by-laws can deal with any subject matter.
In this way, there is no restriction when registering a new strata scheme or when voting on any amendments to by-laws that prevents the making of a by-law which prohibits the keeping of animals or prohibits any other activity provided it is not inconsistent with the SSMA or any other Act.
Thirdly, there are indicators in the SSMA that a by-law prohibiting the keeping of animals is permissible.
Section 139(5) of the SSMA provides that a "by-law has no force or effect to the extent that it purports to prohibit or restrict the keeping on a lot of an assistance animal (as referred to in section 9 of the Disability Discrimination Act, 1992 of the Commonwealth)". If a by-law prohibiting the keeping of any animals was generally not permitted under the SSMA, this section would be unnecessary.
Part 8 Division 3 of the SSMA gives to the Tribunal limited power in respect of orders concerning the keeping of animals. The language used therein supports the view that a by-law prohibiting the keeping of animals is permissible and is not of itself harsh, unconscionable or oppressive. In this regard there is: 1. a power to order the removal of an animal if it is being kept "in contravention of the by-laws": s 156(2) of the SSMA; and 2. a power of the Tribunal to make an order permitting the keeping of animals but only where "the by-laws permit the keeping of an animal with the approval of the owners corporation and provided that the owners corporation cannot unreasonably withhold consent to the keeping of an animal": s 157(2)(b) of the SSMA. Implicitly, these sections of the SSMA contemplate there might be by-laws imposing an absolute prohibition or permitting an owners corporation to refuse consent to the keeping of the animal, whether or not a decision to withhold consent was unreasonable.
The last indicator that supports this view is cl 4(2) of Schedule 3 to the SSMA. In respect of strata schemes registered before the commencement of the SSMA, this clause provides that "a by-law continued in force by this Act is taken to be a valid by-law if it was a valid by-law immediately before the commencement of this clause".
Fourthly, in our view there is no basis for using the heading of s 139(1), "By-law cannot be unjust" or the Second Reading Speech concerning the changes to model by-laws regarding the keeping of animals, to interpret the meaning of or breadth of the operation of s 139(1) of the SSMA.
Sections 34 and 35 of the Interpretation Act do not provide otherwise.
The heading to s 139(1) does not form part of the SSMA: s 35(2)(a), Interpretation Act. While a heading to a statutory provision that does not form part of an Act can be considered, in appropriate circumstances, as extrinsic material under s 34 (ss 35(5), 34(2)(a), Interpretation Act), we do not see that there is any relevant ambiguity in the language of s 139(1) that warrants recourse to the heading in ascertaining the meaning of the phrase "harsh, unconscionable or oppressive".
Consequently, the meaning of "unjust" provides little assistance in determining the meaning or scope of operation of the expression "harsh, unconscionable or oppressive".
There is also no relevant ambiguity in the language of s 139(1) that requires recourse to the Second Reading Speech about proposed changes to model by-laws.
Further, the Second Reading Speech does not, in any event, support the view expressed in Yardy that the Legislature was intending that any by-law prohibiting the keeping of animals would be harsh, unconscionable or oppressive.
In the Second Reading Speech in the Legislative Assembly on 14 October 2015, the Minister for Innovation and Better Regulation said of Part 7 of the Strata Schemes Management Bill 2015: The bill introduces new overarching principles that by-laws must not be harsh, unconscionable or oppressive. There is a transitional provision that will require all existing owners corporations to review their by-laws within 12 months from the Act's commencement. The scheme's by-laws will not be affected by a failure to comply with these review requirements. New model by-laws will be introduced when the regulations are made to deal with a number of issues that are of importance to strata residents. These include amending the existing by-laws relating to pets to make it easier for schemes to become more pet friendly. While a scheme can make its own by-laws, it cannot unreasonably refuse the keeping of the animal, nor can it prevent a resident from keeping an assistance animal. The tribunal still retains the power to make an order for the removal of an animal from a strata scheme if the animal is a nuisance or hazard. The by-laws will also address the issue of smoke drift. To support this, the bill notes that smoke drift can be considered to be a nuisance or hazard it interferes with the rights of a resident to use or enjoy their lot.
While not entirely clear, the Minister seemed to be addressing two separate issues.
The first was the new provision found in s 139(1) of the SSMA and the need for existing schemes to review their current by-laws. Significantly, as the Minister stated, and as cl 4(1) of Schedule 3 to the SSMA provides, a review must be conducted by an existing strata scheme "not later than 12 months after the commencement of s 134". However, as stated above, by cl 4(2) provides for the continuing validity of any by-law previously made and no sanction is imposed under the SSMA upon an owners corporation that fails to conduct any review.
The second issue was the proposed changes to the model by-laws. Here, where the Minister was referring to "existing by-laws", this seems to have been a reference to the model by-laws then in force under the 1996 Management Act.
The conflation of these issues in order to support a conclusion that the by-law in Yardy prohibiting the keeping of animals was harsh, unconscionable or oppressive was therefore inappropriate.
In Attorney General for New South Wales v Melco Resorts & Entertainment Ltd [2020] NSWCA 40, the NSW Court of Appeal (Bathurst CJ, Bell P, Gleeson JA) recently warned of the dangers of reliance on extrinsic material in general, and Second Reading Speeches in particular, in the task of statutory interpretation. In that case, the construction of the legislation which the Court favoured did not depend on, and was not influenced by, any extrinsic materials. The Court cited the plurality in Alcan at [47]: "[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention".
In obiter dicta the Court commented on the primary judge's use of the Minister's Second Reading Speech, where the Minister had referred to the "protection" offered by the legislative amendments in question. The Court stated at [110]: "whether anything turns on whether the Minister was intending to refer to one or more protections in his Second Reading Speech may be debated. That one is left to speculate, however, as to what "protection" or "protections" the Minister was referring to only illustrates the dangers and potential pitfalls that resort to extrinsic materials may have. As French CJ and Hayne J observed in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25]: "The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted."
Next, it was said in Yardy that a determination of whether a by-law is harsh, unconscionable or oppressive is to be judged in the context of contemporary community standards.
In so far as the Tribunal was suggesting that deviation from any such standard of itself renders a by-law harsh, unconscionable or oppressive, we disagree.
Such an approach is not prescribed by the legislation. The standards are not defined in the SSMA.
Reference was made in Yardy to s 149(2) as supporting the importation of a right of habitation. Section 149 deals with common property by-laws which are by-laws permitting a lot owner or owners exclusive use over particular common property or special privileges in respect to the whole or part of common property: see s 142 definition. Relevantly, s 149 says: 149 Order with respect to common property rights by-laws (1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds - (a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or (b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or (c) on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust. (2) In considering whether to make an order, the Tribunal must have regard to - (a) the interests of all owners in the use and enjoyment of their lots and common property, and (b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.
Section 149(2) requires, in the context of determining whether a refusal to approve a common property by-law is unreasonable, a balancing of the interests of all lot owners and the applicant. It does not require a consideration of broader community standards. From an applicant's viewpoint, the section requires the Tribunal to consider "the rights and reasonable expectations" of any owner deriving a benefit under the common property by law, those rights and expectations to be determined by reference to the existing strata scheme and the interests of all those affected.
Further, the importation of such standards would have the effect of giving to lot owners the right to do what they like on their own lots and common property if acceptable in the broader community outside the strata scheme. This is despite the views of the majority of lot owners and the choices which might be made on registration of a strata scheme or by resolution of an owners corporation in connection with the making of by-laws.
It leads to an enquiry concerning the motives of various lot owners about why they wish to live under certain conditions and whether such conditions are justified. Further, it makes uncertain for all those lot owners in the strata scheme and prospective purchasers, what might or might not be permitted to be done even where the by-laws are clear.
Rather, in our view, a challenge to a by-law based on s 139(1) and a determination of whether a by-law is harsh, unconscionable or oppressive requires an enquiry concerning the terms of the by-law and its operation in the context of the particular strata scheme and any relevant circumstances of the applicant.
In this regard, s 150 of the SSMA authorises the Tribunal to make a declaration that a by-law is invalid if the Tribunal considers "an owners corporation did not have power to make the by-law or that the by-law is harsh, unconscionable or oppressive".
Factors relevant to such a determination would be: 1. the terms of the by-law; 2. the history of the by-law; 3. the circumstances in which the by-law came to operate on various lot owners (including the circumstances in which any lot owner acquired a legal interest in property in the strata scheme); and 4. the particular circumstances of the applicant that might otherwise demonstrate that the by-law was harsh, unconscionable or oppressive.
Also relevant might be whether, in the particular circumstances, an applicant challenging a by-law had otherwise attempted to have the owners corporation pass a special by-law exempting the applicant from the by-law under challenge.
However, contrary to what the Tribunal said in Roden at [91]-[93], the simple fact of a universal prohibition and that a by-law provides no mechanism for exclusion from its operation are not matters which, on their own, render a by-law harsh, unconscionable or oppressive. As stated above, the power to make such by-laws is conferred by s 136(1) of the SSMA.
For reasons that appear below, it is unnecessary to determine the exact scope of the expression "harsh, unconscionable or oppressive". However, some observations can be made on this point: 1. A strata scheme comprises of lots and common property, the legal title in the common property being held by an owners corporation (constituted as a body corporate) as agent for the lot owners as tenants in common: s 8 of the SSMA and s 28 of the 2015 Development Act; 2. The SSMA provides for the management of strata schemes and the resolution of disputes arising from the strata scheme: s 3 of the SSMA; 3. A lot owner is bound by the by-laws as provided in s 135 of the SSMA; 4. By-laws operate as laws binding on all lot owners (see Casuarina above) in the context of a statutory scheme created and administered through a body corporate, the owners corporation (White v Betalli, Court of Appeal, above); 5. Section 139(1) operates in respect of the by-laws. That is, the expression "harsh, unconscionable or oppressive" operates in the context of corporate regulation of the strata scheme; 6. It might be accepted the expression has a variable scale of severity, whether read collectively or disjunctively and/or whether the section operates in different circumstances; 7. In the context of a body corporate and regulation of a strata community as a whole, the test is objective, not subjective; 8. The degree of severity is higher than the standard of "unreasonable", it being clear by the use of unreasonable elsewhere in the SSMA when referring to by-laws that this was not intended by the Legislature: see eg s 149 of the SSMA.
Finally, in relation to the decision in Cooper, it is appropriate to deal with various issues of principle raised therein.
An application under s 150 of the SSMA is to be determined in the context of all relevant circumstances. This approach is consistent with what Nettle J said in Ainsworth v Albrecht [2016] HCA 40 at [94] and following, although that case concerned a different type of application where the intention of those voting on a resolution was relevant. As such the question in Cooper was not one of a shifting onus of proof but, rather, whether the by-law contravened the provisions of s 139(1) in the circumstances of the case.
In the context of a by-law prohibiting the keeping of animals, determining whether a by-law is harsh, unconscionable or oppressive does not involve a consideration of whether the by-law has been reviewed in a manner contemplated by cl 4 of Sch 3 to the SSMA and/or whether an existing strata scheme has made "a conscious choice" to retain such a by-law.
Such an approach diverts the Tribunal from a consideration of the by-law under challenge and its operation on the affected person.
For the reasons set out above, the matters referred to as "legislative intention" are no more than an aspirational goal that might have been expressed by the relevant Minister concerning the keeping of animals in strata schemes generally. They did not operate so as to affect the onus of proof or require evidence about the matters identified by the Tribunal in Cooper, for example at [103]-[104] and [110].
In so far as the Tribunal suggests at [114] that a no pet policy "may be objectively justified" if a purchaser has "clear notice, confirmed by express written acknowledgement, of the no pets by-law" or otherwise provides a written undertaking "not to challenge such a by-law", such analysis ignores s 135 of the SSMA and the mutual covenants between the lot owners and owners corporation imposed by the SSMA.
Lastly, contrary to Cooper at [115], the characteristics of the particular animal or types of animal within a particular breed are not of themselves relevant to a determination of whether a by-law prohibiting the keeping of animals is harsh, unconscionable or oppressive.
This is because such an approach gives rise to a theoretical analysis outside the context of a particular strata scheme and in disregard of the circumstances of the particular applicant for relief and how they came to be subject to or bound by the particular by-law. Again, it ignores the permissibility of choice by decision of the majority of lot owners in the context of community living.
The final matter to briefly deal with is the effect of Sch 3, cl 4(2) on the operation of s 139(1).
The combined operation of ss 136(2) and 139(1) means that a by-law which is harsh, unconscionable or oppressive would have "no force or effect".
However, cl 4(2) expressly preserves the validity of a by-law made prior to the commencement of the SSMA. A by-law which was valid under the 1996 Management Act or the earlier Strata Titles Act is, "on commencement" of Sch 3, cl 4 of the SSMA, "taken to be a valid by-law" … "(d)espite any other provision of [the] Act".
Nevertheless, s 139(1) may be contravened by reason of circumstances occurring after the commencement of the SSMA. In this regard, in our view there is a temporal consideration arising from the operation of ss 136, 139(1) and 150 of the SSMA.
This is because the test to be applied by the Tribunal under s 150 is whether a by-law "is harsh, unconscionable or oppressive" [emphasis added], a phrase not limited to a consideration of the circumstances at the time the by-law was passed.
Seen in this way, the words of cl 4(2) are clear. That is, a by-law which was valid under the 1996 Management Act or the earlier Strata Titles Act is a valid by-law on commencement of the SSMA "(d)espite any other provision of [the] Act".
It follows from what we have said above that: 1. A by-law prohibiting the keeping of animals that was valid under the 1996 Management Act is not rendered invalid by reason of the passing of the SSMA; 2. A by-law made under former legislation may contravene s 139(1) and be declared invalid under s 150 of the SSMA if it is harsh, unconscionable or oppressive; 3. A contravention may occur in one of three circumstances: 1. By its terms a by-law may be harsh, unconscionable or oppressive. 2. A by-law may be harsh, unconscionable or oppressive because, by its passing, an owners corporation imposes an obligation upon or removes an existing right from a lot owner. 3. Upon consideration of the particular facts and circumstances of a lot owner that might arise from time to time, an existing by-law may operate in a manner which is harsh, unconscionable or oppressive; 1. The fact a by-law prohibits the keeping of animals does not, of itself, mean that the by-law is harsh, unconscionable or oppressive; 2. In proceedings against an owners corporation under s 150 of the SSMA seeking a declaration that a by-law prohibiting the keeping of animals contravenes s 139(1), there is no general obligation on an owners corporation to prove that it has reviewed that by-law or that such a by-law is objectively justified. Rather, the Tribunal must determine, on an objective basis, whether s 139(1) is contravened having regard to the terms of the by-law and all relevant circumstances of the case. 3. In considering whether a by-law contravenes s 139(1), the following matters are relevant: 1. the terms of the by-law, 2. the history of the by-law, 3. the circumstances in which the by-law came to operate on various lot owners (including the circumstances in which any lot owner acquired a legal interest in property in the strata scheme), and 4. the particular circumstances of the applicant that might otherwise demonstrate the by-law is harsh, unconscionable or oppressive. 1. The test of harsh, unconscionable or oppressive under s 139(1) is objective; 2. There is a variable scale of severity, whether the expression is read collectively or disjunctively and/or whether the section operates in different circumstances; 3. The degree of severity is higher than the standard of "unreasonable", it being clear by the use of unreasonable elsewhere in the SSMA when referring to by-laws that this was not intended by the Legislature: see eg s 149 of the SSMA.
It is against this background that the appeals in Roden and Spiers need to be considered.

Determination of the Roden appeal

The Owners Corporation in this appeal does not seek leave. Rather, the appellant says that in making its decision the Tribunal erred in law.
As recorded above, the relevant facts as found by the Tribunal that are not the subject of any dispute are as follows: 1. The strata scheme, the subject of the dispute, is a 40 story building with 280 apartments, of which approximately half are tenanted; 2. By-law 14, which generally prohibited the keeping of animals, was passed at an extraordinary general meeting of the Owners Corporation on 6 June 2013 by majority of 81.85%; 3. By-law 14 permitted those residents who owned an animal that lived in the strata scheme as at 22 March 2013 to be exempt from the general prohibition in respect of that animal on certain conditions; 4. Previously, there was a general prohibition on the keeping of animals; 5. In 2017 Mr Roden put forward a motion to the Owners Corporation in general meeting to amend the by-law so as to permit the keeping of animals with the approval of the Owners Corporation, such approval not to be unreasonably withheld. The motion was defeated, those voting against totalling 64%; 6. Mr Roden commenced proceedings in the Tribunal; 7. Subsequently, the Owners Corporation voted in favour of defending those proceedings by vote of 55.6%.
While evidence was filed by Mr Roden concerning two other lot owners in the strata scheme, Ms Cranney and Ms Hooper, the Tribunal made no findings in connection with this evidence. Further, the Tribunal made an order dismissing Mr Roden's "interim application" in connection with Ms Cranney being permitted to keep her dog Brinsley, because this application had been made late and the Owners Corporation had not had an opportunity to respond: Roden at [93]-[94]. There is no appeal against this order.
Otherwise, there was no finding by the Tribunal concerning the circumstances of Mr Roden or his need to keep an animal.
There was no dispute that the strata scheme "has had [a] universal pet ban since its inception in 1977": Roden at [79].
At [59] the Tribunal noted there was "no issue between the parties that the 2013 by-law 14 prohibiting the keeping of animals may be considered under the provisions of the [SSMA]".
The Tribunal found: 1. that "a by-law which prevents the keeping of any animal as a pet is contrary to owners' basic habitation right and the use and enjoyment of their respective lots": Roden at [95]; 2. by-law 14 is oppressive because "it does not involve or reflect a balanced consideration of all lot owners or occupiers and it operates only in the interests of lot owners who are opposed to pet ownership": Roden at [96].
In doing so, the Tribunal: 1. by reason of its conclusion at [95], appears to have accepted the reasoning in Yardy and the submissions of Mr Roden, in particular: 1. "that a blanket prohibition against the keeping of animals within the strata premises is unnecessary and at least unreasonable and that a balanced and considered approach can be adopted which has due regard to the interests of all owners and occupiers of lots within the scheme": Roden at [64]; 2. that there are basic rights of owners which are "part of community standards": Roden at [78]; 3. that there is a "benefit of pet ownership to humans as a general rule": Roden at [33], [79]; 4. that the Second Reading Speech relating to the keeping of animals "might be relevant to the issue of interpretation" and "that the introduction of section 139(1) in the SSM Act was directed to a by-law which allowed for a blanket ban on animals": Roden at [83]-[84]; and 1. rejected that Yardy "disclosed significant legal error": Roden at [86].
For the reasons set out above, in our view the Tribunal was in error in determining the by-law was harsh, unconscionable or oppressive: 1. based on what was said by the Minister in the Second Reading Speech on the introduction of the Strata Schemes Management Bill 2015 and using those statements for the purpose of interpreting the meaning or operation of s 139(1) of the SSMA in the current circumstances; 2. because there exists a "basic habitation right" to be able to keep an animal in a strata scheme; or 3. because s 139(1) was directed to by-laws prohibiting animals.
It follows that the appellant's grounds 2, 3 and 4 are made out.
Appeal ground 1 is also made out. Neither party finally contended that the SSMA did not permit a by-law prohibiting the keeping of animals in any circumstances and, for the reasons expressed above, in our view the SSMA does not operate to prevent such a by-law.
Finally, we should refer to ground 5 and the submissions of the parties concerning the facts said to be relevant to a resolution of this appeal. In this ground, the Owners Corporation said that the Tribunal was in error because it determined the decision in Yardy could not be distinguished on the facts.
The written submissions of the parties do not engage directly with this ground although oral submissions were made by the Owners Corporation's Counsel that Yardy should be distinguished. Rather, the parties' submissions dealt with the permissibility of a by-law preventing the keeping of animals, the circumstances existing in Mr Roden's strata scheme, and other facts relied on by Mr Roden to establish that by-law 14 was harsh unconscionable or oppressive, and whether the decision in Cooper was correct as to the approach to be taken in considering those facts.
Whether the facts as found fall within the provisions of an Act properly construed is a question of law: Hope v The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 per Mason J at 7.
A number of submissions were made on Mr Roden's behalf as to why the Tribunal was correct to declare the by-law invalid. We will deal with these by reference to Mr Roden's submissions in chief dated 28 November 2019 and his further submissions in reply dated 17 December 2019.
In Mr Roden's submissions in chief, he put forward eight reasons why the by-law was invalid. These were: 1. the by-law had a drastic and unjustified effect on the private lives of owners and residents. In this regard the owners and residents were prevented from owning "benign pets such as goldfish, and from eating oysters in their own homes, despite those acts having no impact whatsoever on other owners and residents in the building"; 2. the Owners Corporation led no evidence which would have justified such a by-law, Mr Roden relying upon the analysis in Cooper at [110]. Mr Roden submitted the Owners Corporation had "admitted that the broad effect of the by-law is not justifiable because it restricts owners and residents from having animals which caused a nuisance"; 3. the expansive effect of the by-law was not mitigated by the Owners Corporation having a discretion to approve exemptions; 4. the Legislature intended by the introduction of the SSMA to "encourage buildings to become more pet-friendly". Since the introduction of the SSMA there has been no resolution passed by a special majority in favour of keeping by-law 14; 5. the by-law is unfairly discriminatory, permitting those who owned pets as at March 2013 to continue to do so. Mr Roden refers to his evidence filed in the proceedings at first instance and says he "wishes to be able to have his daughter visit him with her pet dog and to own his own dog" and that "despite these visits plainly being less intrusive for other owners and residents than having a pet full-time, Mr Roden will be unable to enjoy that provision"; 6. the fact some owners are permitted to keep animals "demonstrates that the building is capable of allowing owners and residents to own pets" and the Owners Corporation has made regulations for this to occur. This fact suggests that a blanket ban is unnecessary due to any administrative difficulties associated with a more "customised solution" as that expression was used in Cooper at [122]; 7. the by-law may inhibit apartment prices; 8. the Tribunal was correct to conclude there are "basic habitation rights" in connection with the use and enjoyment of lot owners respective lots. The existence of these rights does not require proof but is a matter of law.
Once it is accepted that prohibition on the keeping of animals is permissible and that the owners of land have a choice whether to keep or exclude animals from their land, a general examination of particular animals which might be described as "benign" provides little assistance in determining whether the by-law is harsh, unconscionable or oppressive.
The Owners Corporation has had a by-law preventing the keeping of animals since its registration. Such a by-law was permitted at the time the strata scheme was registered and, in our view, there is nothing inherently harsh, unconscionable or oppressive in a strata scheme existing which is, in effect, animal free.
The effect of the original by-law was ameliorated by the passing of by-law 14 in June 2013. By-law 14 permitted those who had otherwise unlawfully had animals on their lot or common property as at March 2013 to be able to keep those animals. By-law 14 was passed by a majority of 81.85%. It reflects a clear majority view of the Owners Corporation. The only conclusion to be drawn from by-law 14 being passed in that form is that the Owners Corporation was accepting circumstances had occurred which made it appropriate for those with existing animals to be able to retain them. However, moving forward, new animals would not be permitted.
Again, in our view, these facts do not demonstrate by-law 14 is harsh, oppressive or unconscionable.
Further, the fact a building could accommodate some animals, as demonstrated by the limited permission granted for existing animals, does not of itself demonstrate a contravention of s 139(1). There is no evidence on this aspect or the consequence for the strata scheme and the lot owners if there was a general permission. Again, it also ignores the ability of the collective to choose to create and/or live in an animal free strata scheme.
Mr Roden also submitted that the exclusion of existing animals from the operation of a general prohibition and the passing of by-law 14 in that form is otherwise discriminatory in a manner that contravenes s 139(1).
We do not agree.
There is no evidence concerning what occurred at the general meeting where by-law 14 was passed. There is no basis to conclude the Owners Corporation in general meeting intended to unfairly deal with lot owners in general or Mr Roden in particular. Rather, as we said above, the Owners Corporation appears to have passed by-law 14 having regard to some historical non-compliance or particular lot owners and had decided to permit their animals to stay rather than have them removed from the strata scheme.
Otherwise, in the case of Mr Roden, there is no suggestion he was not aware of the limitations of keeping animals in the strata scheme. However, he relies on his desire to now have his daughter be able to bring her dog to his premises and onto common property to visit and that he might wish to keep the dog himself.
Having chosen to live in a strata scheme which has a by-law prohibiting the keeping of animals, these wishes of Mr Roden when considered against: 1. the history of the strata scheme; 2. Mr Roden acquiring his lot knowing the keeping of animals was not permitted; 3. the clear intention of the Owners Corporation expressed in general meeting in June 2013; and 4. the continuing opposition by the majority of lot owners as expressed at the meeting in 2017; do not justify a conclusion that by-law 14 is harsh, unconscionable or oppressive.
Mr Roden separately submitted that lot prices might be adversely affected by such a by-law. It is equally conceivable that a prohibition on the keeping of animals may attract a premium for those in the market wishing to live in such a strata scheme. In any event, there is no evidence to which we have been referred which would support a view one way or the other. We do not think this submission has any significance in the determination of the present appeal.
Finally, while Mr Roden might think that the by-law is unreasonable in its application to him, the Legislature has not adopted such a test under s 139(1). What is required is an objective determination concerning the by-law and its operation. The Queensland decisions to which reference of been made, which are based on a test of unreasonable or oppressive, provide no help in resolving an application under s 150 of the SSMA.
There was considerable discussion in each of the decisions in Yardy, Roden and Cooper about the meaning of the words harsh, unconscionable or oppressive including whether the words needed to be considered compendiously or disjunctively. As the High Court has said in various decisions, care needs to be taken in having recourse to the dictionary in seeking to use synonyms to give meaning to a test expressed in a statute: see eg Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17 at [49]. The meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears: Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15 at [18].
For present purposes, it is unnecessary to resolve the exact scope of operation of s 139(1). While it might be accepted that each of the words harsh, unconscionable or oppressive are to be given separate meanings and/or might reflect a variable scale of severity when considering the operation of a by-law, the by-law in question and the facts in Mr Roden's case do not justify a conclusion that by-law 14 is harsh, unconscionable or oppressive and should be declared invalid.

Effect of Sch 3 cl 4 of savings and transitional provisions

We should briefly deal with the parties' submissions concerning the operation of Sch 3, cl 4(2) in respect of by-laws existing in strata schemes prior to the commencement of the SSMA and whether such by-laws are, after commencement of the SSMA, liable to be declared invalid under s 150 on the basis they are harsh, unconscionable or oppressive.
This is because it is necessary to consider whether a by-law in force prior to the SSMA might be declared harsh, unconscionable or oppressive by reason of facts and circumstances occurring prior to the commencement of ss 139(1) and 150 and/or whether such a by-law might be declared invalid by reason of facts and circumstances occurring after commencement of the SSMA. Alternatively, is the effect of cl 4(2) to make immune from challenge under ss 139(1) and 150 a by-law in force in a strata scheme prior to commencement of the SSMA that was valid under the former legislation?
As stated above, this issue was not raised in the proceedings at first instance. It was raised by this Appeal Panel and by the Owners Corporation. However, the meaning and operation of Sch 3, cl 4(2) is purely a question of law, not depending upon the resolution of any factual dispute. Consequently, it is a matter which can properly be dealt with in this appeal: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35.
The Owners Corporation submitted that cl 4(2) operates to preserve an existing by-law.
In the Owner Corporation's further submissions dated 19 September 2019, the Owners Corporation said ss 139(1) and 150 do not act retrospectively. Reference was made to cases such as Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 and the statement of Dixon CJ at 267. The Owners Corporation submitted that: "Parliament is presumed to have intended that s 150 would not operate so as to 'attach legal consequences' (i.e. invalidate) facts or events (i.e. the previous passing of valid bylaws) that occurred before commencement of the SSMA".
Mr Roden submitted that cl 4(2) does not apply to an order under s 150 but only to "any other provision" of the SSMA. He submitted that an order under s 150 "does not render a by-law 'invalid' … but rather, once registered, 'has effect as if its terms were a by-law repealing the by-law'".
Mr Roden contrasted s 150 with s 136(2) and s 139(4) and (5) which, it was submitted, automatically render a by-law invalid in whole or in part.
Mr Roden referred to the words "is taken to be a valid by-law" in cl 4(2) and said they provide for the continuing operation of the by-law until it is invalidated in consequence of any application under s 150 that might subsequently be made.
This misstates the operation of these sections.
As we stated above, the combined operation of ss 136(2) and 139(1) means that a by-law which is harsh, unconscionable or oppressive would have "no force or effect". Section 150 does not operate independently of these sections. Rather, s 150(1) provides the Tribunal with an order making power by which the fact of invalidity arising from the operation of s 139(1) (or because an owners corporation did not have the power to make the by-law) might be declared in any dispute between the parties. Section 246 permits recording of that fact on the title by the Registrar General.
As we have set out above, the operation of cl 4(2) is clear. It makes valid under the SSMA a by-law that was valid under earlier legislation. Section 150 of the SSMA then permits challenge to a by-law if, after commencement of the SSMA, it operates in a manner which is harsh, unconscionable or oppressive.
However, in the case of Mr Roden there are no circumstances occurring after the commencement of the SSMA that would render by-law 14 invalid.
It follows from what we have said that the appeal by the Owners Corporation should be allowed, the orders made by the Tribunal on 18 September 2019 should be set aside and Mr Roden's application should be dismissed.

Stay orders made in the Roden appeal

The final matter to deal with is the Stay Orders made by the Appeal Panel on 17 October 2019. These orders were: STAY ORDER 1. The order made 18 September 2019 in appeal SC 18/37522 in validating by-law 14 is stayed until further order of the Tribunal on the following conditions. Pending determination of the appeal: a) The appellant is not to take steps to prosecute any lot owner or occupiers in connection with the keeping of any animal in contravention of the by-law or to issue any further notices of breach under s.146 of the Strata Schemes Management Act 2015. b) The appellant is not to take steps to require any lot owners or occupiers who presently keep an animal on the strata scheme property as at 17 October 2019 to remove that animal. c) Regardless of the outcome of the appeal, undertakes not to prosecute any lot owner for any visiting pet brought onto the premises between today and the determination of the appeal, providing that any lot owners or occupiers bringing (or permitting to bring) a visiting pet on to the Strata Scheme Premises first provides written notice to the Secretary of the Owners Corporation, which notice must contain: (i) The name of the animal (if any) and its type; (ii) The owner of the animal; and (iii) The commencement date for the visit and its duration and that the visiting animal be transport across but not be permitted to remain on common property.
It is appropriate to lift the stay and set aside Orders 1 (a) and (b). Otherwise, the undertaking provided by the Owners Corporation (1(c)) remains in effect.

Determination of the Spiers appeal

In this appeal, Ms Spiers does not seek leave to appeal.
The relevant facts as found by the Tribunal that are not the subject of any dispute are as follows: 1. The strata scheme consists of 176 lots in a property located in Kensington: Spiers at [8]. 2. On 30 April 2015, prior to Ms Spiers becoming a lot owner, the Owners Corporation had passed new by-law 13 in respect of the keeping of animals under the 1996 Management Act. This by-law replaced the original by-law 13. The April by-law provided for the keeping of one small animal with the consent of the Owners Corporation which could not be unreasonably withheld. The approval was in respect of a specific animal. A definition for small animals was provided. For adult dogs this specified an animal less than 13 kg in weight and 40 cm in height at the shoulders. 3. Ms Spiers acquired her lot by contract exchanged 28 February 2018. The purchase settled on 5 April 2018. The Owners Corporation was notified in ownership by notice dated 12 April 2018. 4. Between the date Ms Spiers exchange contracts for her and the date she moved into her lot in April 2018, Ms Spiers acquired a second dog. 5. Ms Spiers submitted an application for the keeping of two animals (Fergus and Daisy) on 23 April 2018. 6. On 3 May 2018 the managing agent for the strata scheme advised Ms Spiers that by-law 13 only permits of the keeping of one small animal and requested she resubmit her application for one small animal only. 7. No further application was received from Ms Spiers and on 10 October 2018 the managing agent again wrote noting that no approval had been given for the keeping of any animals and that various complaints had been made concerning excessive barking of one dog. 8. On 22 October 2018 to the Owners Corporation issued two notices to Ms Spiers pursuant to s 146 of the SSMA concerning contravention of the by-laws, one in respect of noise and a contravention of by-law 1 and the other in respect of keeping of animals. 9. Two further notices were issued by the Owners Corporation to Ms Spiers concerning her dogs, on 7 January 2019 and 20 March 2019 respectively. 10. The Strata Committee of the Owners Corporation resolved to file an application under s 156 of the SSMA seeking an order for removal of the second dog (Fergus) on 1 April 2019. Thereafter, Ms Spiers filed an application seeking a declaration under s 150 of the SSMA that the by-law was harsh, oppressive or unconscionable and that the Owners Corporation had unreasonably withheld consent in respect of her applications.
During the course of these events, by-law 13 was repealed and replaced by by-law 9 at a meeting of the Owners Corporation held on 17 December 2018. It is common ground that the replacement by-law 9 was in substantially the same terms in respect of the keeping of an animal on lot property, changes having been made to the identification requirements.
In dismissing Ms Spiers' claims the Tribunal made the following determinations: 1. In a large strata scheme, the fact a lot owner, in this case Ms Spiers, might have a larger lot was not a reason why refusal to permit the keeping of more than one animal was unreasonable. The Tribunal said at [40]: Allowing pets on a per square metre bases is, in my view, an uncertain way to restrict pet numbers in large strata scheme (sic) and as a matter of practicality appears unworkable. 1. Fergus was not a very quiet dog and the Tribunal did not accept the evidence that "future behavioural training" would alter this position: Spiers at [41]; 2. While complaint was made by Ms Spiers that her application in April 2018 had been automatically rejected, the Tribunal rejected this contention noting that it was an application seeking approval for two dogs, which could not be proved under the existing by-law, and that the Owners Corporation had subsequently approved one of the dogs, Daisy, and had withdrawn its application for removal of that dog: Spiers at [42]; 3. The Tribunal concluded there was no evidence to support a conclusion that Fergus was a companion animal for Ms Spiers' son for the purpose of any relevant legislation: Spiers at [43].
Consequently, having regard to the fact that Ms Spiers acquired a second dog in circumstances where she knew there was a by-law preventing a lot owner from having two dogs and in circumstances where there was no "absolute embargo on pets" the Tribunal found that the by-law was not harsh, oppressive or unconscionable.
The present case is not one where Fergus is an assistance animal or is otherwise permitted to be on lot and common property because of the operation of some other Act.
Unlike the position in Roden, the by-law in this case is not an absolute prohibition on the keeping of animals.
The by-law operates in a 170 lot strata scheme in the same way for each lot owner. It is not a by-law that was passed in circumstances where it reduced the use and enjoyment by Ms Spiers of her lot.
Ms Spiers acquired her lot with knowledge of the then by-law 13, which operated in the same manner as the current by-law 9 in respect of keeping a dog on her lot. Having done so, she purchased a second dog and now complains the by-law operates in a manner which is harsh, oppressive or unconscionable.
Ms Spiers', in submissions in chief, says that the by-laws in their various forms "impose a blanket ban on the ownership of any second animal" and "[i]t is in this respect that the By-Laws are said to be harsh, oppressive or unconscionable". In doing so, Ms Spiers makes clear that she is not asking the Appeal Panel to consider whether Fergus should be allowed to stay. Rather, the challenge is to the terms of the by-law.
Ms Spiers contends that the test of whether a by-law is harsh, unconscionable or oppressive is an objective question "determined by looking at the operation of that by-law in the context of the by-laws as a whole, but does not involve any subjective consideration of how that by-law might operate in the circumstances of a particular animal". The circumstances of the particular strata scheme and other owners may be relevant to this consideration.
Ms Spiers relies on the decision in Yardy, and highlights what was said in that case at [78] - that is, a by-law which provides no process by which a lot owner could be able to keep an animal as a pet only operates in the interests of those opposed to the keeping of animals.
We have already rejected this process of reasoning. In our view it ignores the fact that in community living choices can be made.
Further, in the particular facts of this case, where individual lot owners are permitted to keep one dog but not more, it seems to us self-evident that a limitation on the number of animals that might be kept in circumstances where the owners of 170 lots might apply to keep an animal could not, of itself, make a by-law limiting the number of animals harsh, unconscionable or oppressive.
Ms Spiers seeks to look at particular animals, other than the dog which she wishes to keep, as a means to challenge the by-law. This type of analysis is unhelpful. It ignores the fact that prohibition is permissible under the SSMA and that in community living the Legislature has permitted the majority to make a choice by special resolution.
That is what has occurred here in the passing of previous by-law 13 and by-law 9.
The approach suggested by Ms Spiers invites an examination by reference to particular animals about how many should be permitted. It leads to an arbitrary or at least uncertain provision likely to produce disputes and difficulties for the Owners Corporation dealing with animals.
For example, Ms Spiers refers to the keeping of budgerigars. One might ask should a lot owner be permitted to have a menagerie of birds? How many budgerigars should be permitted before there are too many? Such an approach would require the Owners Corporation or its management to "police" issues that arise from the keeping of such animals, such as noise, smells and waste disposal issues. An additional burden would be imposed on all lot owners and the Owners Corporation.
On the other hand, the present by-law provides a simple means by which a lot owner is informed when purchasing their lot of the extent of their entitlement to keep an animal for which approval must be obtained and the requirements for identification of the animal. The lot owner can then choose not to live in a strata scheme which has restrictions they do not like but which are acceptable to the other owners. There is no uncertainty for any affected lot owner.
Ms Spiers also submits that the by-law is harsh, unconscionable or oppressive because it does not take account of the different sizes of units. It is difficult to see how this consideration in the context in which it is raised could form the basis for making a declaration of invalidity because of a contravention of s 139(1) of the SSMA.
Quite clearly, the size of any lot and its suitability for keeping any animal will be depend on the particular animal or animal type and its habitation requirements. The Tribunal at first instance analysed the submission concerning lot size and, in effect, concluded that it provided no satisfactory yardstick by which to measure whether a by-law was harsh, unconscionable or oppressive in an objective sense or how a by-law in such terms might operate in practice. We see no error in the Tribunal's conclusion to reject this ground of challenge.
Next, Ms Spiers says that the failure to allow more than one animal to be approved, with conditions, makes the by-law harsh, unconscionable or oppressive because there is "no attempt to balance the genuine interests people who reside in residential apartment and in owning pets with the legitimate concerns others may have as to the effect of those pets on their own use and (sic) enjoyment of strata premises". Again, this submission ignores the choice which the Owners Corporation can make in general meeting as permitted by the SSMA to create a community constituted by a strata scheme that might prohibit the keeping of animals or limit them in a particular way.
Finally, we should briefly deal with some specific submissions concerning the interpretation of Sch 3, cl 4(2) of the SSMA contained in Ms Spiers' further submissions dated 18 December 2020.
We accept that the Tribunal had power, in some circumstances, after the commencement of the SSMA, to make a relevant declaration under s 150 in respect of: 1. by-law 13 (up until it was amended); and 2. by-law 9.
However, for the reasons above, by-law 9 was not harsh, unconscionable or oppressive.
In these circumstances we are not satisfied by-law 9 or its predecessor by-law 13 are harsh, unconscionable or oppressive.
Accordingly, this appeal should be dismissed.

Stay order made in the Spiers appeal

On 17 October 2019 the Appeal Panel made the following stay order: Order 1 made 11 September 2019 in application SC 19/16600 is stayed until 5:00pm on 11 December 2019.
The orders originally made in respect of the two proceedings between Ms Spiers and the Owners Corporation were as follows: 1. Application SC 19/27005 is dismissed. 2. In SC 19/16600 I make the following orders: (1) The respondent Tiffany Spier shall remove the dog "Fergus" from the premises by 23 October 2019.
The stay made by the Appeal Panel expired on 11 December 2019 and has not been renewed. It was not a matter raised by the parties at the hearing on 11 December 2019. This is not a criticism of either party. No doubt the substantive issues in the appeal fully occupied their attention.
It is unclear whether the dog Fergus has now been removed from Ms Spiers lot. If not, having regard to the history of the proceedings, it seems appropriate to give Ms Spiers a period of time to remove the dog.
To avoid the need for further submissions, we will extend the time for compliance with order 1 in application SC 19/16600 for a period of 28 days from the date of these orders. That way, the parties can consider their respective positions in light of our reasons and time will be provided for removal and rehousing of the dog.
If either party contends for a different order, we will give liberty to apply.

Orders

In appeal AP 19/44871 the Appeal Panel makes the following orders: 1. The appeal is allowed and the order declaring by-law 14 to be invalid made in application SC 18/37522 on 18 September 2019 is set aside. 2. In lieu thereof the application is dismissed. 3. In respect of the orders made by the Appeal Panel on 17 October 2019: 1. the stay is lifted and Orders 1 (a) and (b) are set aside; and 2. otherwise, the undertaking provided by the Owners Corporation (1(c)) remains in effect.
In appeal AP 19/45615 the Appeal Panel makes the following orders: 1. The appeal is dismissed. 2. The time to comply with order 1 made on 11 September 2019 in application SC 19/16600 (removal of the dog Fergus) is extended to 28 days from the date of these orders. 3. Liberty for either party to apply in respect of order 2.
In respect of costs, the following directions are made in each appeal: 1. Any applicant for costs (costs applicant) is to file and serve such application and relevant submissions and evidence within 14 days from the date of these orders; 2. Any reply, including evidence and submissions, to the application is to be filed and served within 21 days from the date of these orders; 3. The cost applicant is to file and serve any response within 28 days from the date of these orders. 4. The submissions are to include submissions about whether an order dispensing with a hearing should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2020

Body Corporate and Community Management Act 1997(Qld)

Strata Schemes (Freehold Development) Act 1973(NSW)

(Repealed) Strata Schemes Management Act 1996(NSW)

(Repealed) Strata Schemes Management Act 2015(NSW)

Strata Schemes Management Regulation 2010(NSW)

(Repealed) Strata Titles Act 1973(NSW)

Strata Schemes Management Act 1996(NSW)

Strata Titles Act 1973(NSW)

990, BC900245 Casuarina Rec Club Pty Limited v The Owners - Strata Plan 77971 [2011] NSWCA 159 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503 Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15 Hope v The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 London Association of Shipowners and Brokers v London and India Docks Joint Committee [1892] 3 Ch 242 Mineralogy Pty Ltd v The Body Corporate for "The Lakes Coolum" [2002] QCA 550 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Owners - Strata Plan No 58068 v Cooper [2019] NSWCATCD 62 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Roden v The Owners - Strata Plan No. 55773 [2019] NSWCATCD 61 Salerno v Proprietors of Strata Plan No 42724 (1997) 8 BPR 15,457 Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd and Another(1991) 5 BPR 11,432 Suttor v Gundowda Pty Ltd (1950) 81 CLR; [1950] HCA 35 The Owners - Strata Plan No. 77938 v Spiers, 11 September 2019 (unreported) White v Betalli & 1 Or [2006] NSWSC 537 White v Betalli [2007] NSWCA 243; (2007) 71 NSWLR 381 Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 Young v Owners - Strata Plan No 3529 [2001] NSWSC 1135; (2001) 54 NSWLR 60 Category: Principal judgment Parties: AP 19/44871

Solicitors: Yardy Legal Pty Ltd (Appellant) Le Page Lawyers (Respondent) File Number(s): AP 19/44871; AP 19/45615 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: SC 18/37522: Roden v The Owners - Strata Plan 55773 [2019] NSWCATCD 61 SC 19/16600; SC 19/27005: Not applicable Date of Decision: SC 18/37522: 18 September 2019 SC 19/16600; SC 19/27005: 11 September 2019 Before: SC 18/37522: N Vrabac, Senior MemberSC 19/16600; SC 19/27005: S Thode, Senior Member File Number(s): SC 18/37522; SC 19/16600, SC 19/27005

The Owners - Strata Plan No 55773 v Roden; Spiers v The Owners - Strata Plan No 77953

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